How a Lawyer Deals With an Unrepresented Party
Published to: 000113, 000114, 000116, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on August 25, 2011 8:48 pm
Tips For Family Practice Attorneys in Dealing With Unrepresented Parties and Their Families
These Tips are not theoretical. They are things that have worked for me
during a 30+ year family practice.
1. Fundamental to these ideas are certain basic assumptions. They assume the attorney is a reasonably good conversationalist, that the attorney is compassionate and wants to help with both sides of the fractured family unit resolve their differences and move to a new phase in life, and that the attorney is reasonably intelligent and honest. These tips may not work for you if any of these assumptions do not apply to you.
2. Early in my practice, I spoke with many experienced attorneys who proudly advised, “I will never deal with an unrepresented party”. My reaction -malpractice. I still feel that way.
3. Since my goal is to resolve cases efficiently, collaboratively when
possible, in a timely manner, and with a good result. I see no option but to deal with the unrepresented party.
4. Whenever possible (about 60% of the time), shortly before filing your petition, in the presence of your client, and with your client’s permission, phone the other party in the presence of your secretary
and client, introduce yourself, explain the purpose of the petition, advise
the other party of their need to retain an attorney, and attempt to
establish the following ground rules:
a. You will deal with one another honestly and directly;
b. That there must be no threats, harassment or abuse of any kind
(or they will see your “other side”);
c. That your first choice will be a prompt exchange of discoverable
material and a prompt settlement meeting or mediation;
d. That if children are involved, they not be dragged into the controversy, and assure the other party of your intention to respect and
agree to their establishment of parental rights.
5. This tip has many caveats:
a. With experience, you will be able to identify the 40% or so of cases where such an idea (calling the other party) will not apply.
b. The same standards that will screen certain parties out of mediation will sometimes make this approach impossible. Serious drug
or alcohol abusers are incapable of keeping their word, and certain attitudes,
sometimes your client’s, are nearly impossible to overcome.
c. Several times a year, I receive some complaints from clients for being billed for calls to me from their spouse or “in-law”; so, I have
added to my “Thank You for Hiring Me Letter” an explanation that
dealing with the other side, even difficult persons on the other side, is
part of what I am being paid for and that I must be the sole judge of
when it is appropriate to do so and when it is appropriate to refuse to do so.
d. Clients need to be carefully advised, especially if they have
hired you because they hear you are a “rip your throat out” kind of lawyer, that you intend to be polite, reasonable and honest with the other party.
This is often contrary to their expectations, and it has taken me many years to figure out how to articulate this idea so the client won’t think you are “a wimp”.
This is a particularly difficult challenge if you are “a wimp” and somewhat
difficult to carry out in practice if you are naturally aggressive.
6. The following are my most essential components in dealing with unrepresented parties:
a. Respect them, and show that respect;
b. Be honest. If you feel you cannot be honest with a particular
party, that is a party you should not be dealing with directly. Do not
EVER lie to the other party.
c. Be prepared to negotiate with the other party the same deal you would negotiate if they had competent counsel;
d. If the other party breaches your trust, for example, by refusing to return the child at a scheduled time, be prepared to take action immediately with an emergency or ex parte motion. If your client has trusted your advice to allow the spouse to see the
children or to have access to certain property, and the other party
attempts to take advantage of you, you are at great risk of being fired
unless you promptly resolve the issue. Once this happens, you will
have to deal with that party “at arms length” thereafter. Until recently,
I had a remarkable string, nearly 10 years, of opposing parties
who returned children as promised without a court order. But such
strings always will be broken, and you must be prepared for that.
e. Stress during your first conversation with the other party, followed up promptly in writing, that the other party should have counsel. Never make implied promises based on a “wink” that the
other party doesn’t need an attorney. But make sure that the other
party understands that if they do not have an attorney, you will deal with them honestly, and that no agreement between you and them
will be binding until approved by the Court.
f. All other good rules of lawyering apply in dealing with self-represented litigants. Prompt preparation of agreements, prompt
responses to correspondence and phones calls, accuracy in gathering
the facts, promptness in scheduling hearings, and settlement meetings,
and mediations facilitate the settlement of a case. A properly trained
and courteous staff helps you deal with the self-represented just as
they help you deal with other attorneys.
g. At appropriate times, communicate with your family court judges so that they have some idea of how you deal with self-represented litigants. Every judge knows of cases lawyers
have brow-beaten and cheated a self represented party. Show the
Court that you always do the right thing. You do it for the same
reason that you don’t take that magazine out of your dentist’s office.
Your mother taught you better, and it’s not fair if you do the right
thing only because you don’t want to get caught. Besides, you
might get caught!
h. Be prepared for the accusatory question by your client or family, “whose side are you on anyway?”. My response to such
comments is swift and practiced. If there are children, I make sure
that the client knows I place their children’s interests
even above their own. I stress to them how important it is to
maintain a decent relationship with the opposing party and how
expensive it could be if it were otherwise. I make sure they understand
that I am the person to “go to war” for them if a war is required.
i. Protecting your personal and your professional safety are imperative. I have a concealed weapons permit and “personal protection” within
a couple feet of my office chair for those unpredictable and terrifying
moments we hope never will come. Certain meetings should take place
only in the presence of a bailiff or in the courthouse when appropriate
arrangements have been made to assure that help will promptly respond.
j. Taken to extremes, protecting yourself professionally would mean that you would never talk “one on one” with the self-represented. There are risks if you privately converse with the self-represented party, either by phone or in person, but I have found that attorneys motivated largely by “C.Y.A.” are not that affective.
k. Many techniques can help:
i. Follow up notes, reciting the conversation and confirming the result is a good protection.
ii. Having a staff member present during a meeting, or at the
conclusion of the meeting, where you summarize and remind the
parties of key points helps.
iii. Memorializing a conversation by turning on the tape recorder,
with permission, has its place, and prompt reporting to your client by letter,
through a secretary, or by a call, helps to avoid a misunderstanding.
iv. Remember, not everybody is honest, and some people hear only
what they want to.
v. I have handled many an angry call from a client to whom I have been misquoted by their spouse or family. When you have a good
rapport, often they will discount the other party’s claim.
Sometimes they will not. Explain to them what was said, honestly,
and simply, and why.
7. The next “tip” depends upon the quality of your office staff and their personalities. We all know the attorneys whose staff is kept “in the dark”, “I make my own appointments”, and who retains staff for mere “clerical duties”, typing, dictation word for word, etc. I am fortunate to have a receptionist with nearly as many years experience as I have and two
“fearless” paralegals with the “gift for gab”. They can be trusted to relay
my messages with near 100% accuracy, to respond to questions with
mature judgment, and, where necessary, to give troubled clients motherly
and practical advice. In other words, do not be afraid to delegate but
maintain your e-mail messages, phone logs, and notes so that the level of
communication does not deteriorate.
8. A busy family practice involves a constant stream of messages,
complaints, questions and discussion. It can consume an office with what
efficiency expert Ezra Tom Clark calls “urgent, but not important,”
chatter. Nevertheless, the better family law attorneys have a knack for
accepting these messages, passing them on to the clients, getting the
client’s response and getting back to the other side. It is a delicate
balance, but when it works, your client benefits.
In summary, in a
world which our West Virginia Supreme Court
and the “powers that be” have “thrown in the towel” regarding representation of family law litigants, with “do it yourself packages”,
draconian supervision of sole and small firm practitioners, and in where
over 70% of litigants are self-represented, any attorney who refuses
to deal with the self-represented, and to deal with them efficiently,
is doomed to much grief and failure.
This post was written by Burton Hunter